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Church Schedule 9 exemptions prevail in Employment Tribunal case

Some of the implications of the steps that have been achieved towards equality, and particularly equality of marriage, are still being played out. The Employment Appeal Tribunal had recently to consider where the Church’s Schedule 9 exemptions under the Equality Act 2010 begin and end.

In Rev Canon JC Pemberton v Right Rev Richard Inwood (UKEAT/0072/16/BA) Her Honour Judge Eady QC considered the ambit of the religious exemptions to the equality principles.  The case focussed on the protected characteristics of sexual orientation and marital status, and the right not to be harassed for having them. 

Officiating for the church and marriage equality

Rev Pemberton had been a CofE Minister between 1982 and 2007, the point at which he and his wife divorced.  He then returned to his calling as a community chaplain and acted as chaplain and bereavement services manager for the United Lincolnshire Hospitals NHS Trust.  This required him to hold an Extra Parochial Ministry Licence.

In April 2014 Rev Pemberton was remarried, this time to a man, attracting considerable press interest, and soon received warnings from the Bishop of Lincoln that his second marriage may be inconsistent with the church’s expectations.

In May 2014 the Reverend applied for a salaried position as a chaplain at the Sherwood Forest Hospitals NHS Trust, and was offered that appointment.  However the Right Rev Richard Inwood had by then been appointed acting Bishop of Southwell and Nottingham, and was required to give his permission.  Not only did he decline to do so, he revoked Rev Pemberton’s Permission to Officiate.

The Employment Tribunals’ decisions

In the Employment Tribunal and the Employment Appeals Tribunal, the acting Bishop had denied that he was, for the purposes of the legislation, a ‘qualifications body’ granting, or not granting, a Permission to Officiate.  In the alternative, he argued that even if he was such a body, any relevant qualifications were for the purposes of employment for an organised religion and within the scope of the Schedule 9 exemption.  He further denied harassment (as defined in Richmond Pharmacology v Dhaliwal [2009] ICR 724).

The Employment Appeals Tribunal upheld the first instance Tribunal in every respect, accepting the Respondent’s position, and HHJ Eady QC dismissed both parties’ appeals.  As she explained:

123. I understand the Claimant's objection to the way in which the Employment Tribunal has expressed itself in these respects.  It is unhelpful to characterise his conduct - manifesting his love and commitment for his long-term partner through marriage - as an act of defiance against the doctrines of the Church.  That may have been the consequence (as I have concluded the ET was entitled to find) but the ET's description can be read as suggesting that was the Claimant's intention, which fails to do justice to his position.  Similarly, I can see why the Claimant has objected to the ET's explanation as to why it saw the application of schedule 9 to be relevant to the determination of the harassment claim.  Certainly, the use of the expression "affront to justice" seems unnecessarily hyperbolic.

124. All that said, I consider that, beneath these infelicities of expression, the ET's reasoning discloses no error of law.

She further gave permission to the parties to invite the Court of Appeal to consider the matter further, if either wished to ask them to do so.  Although the Respondent may indeed take up that invitation, Judge Eady’s analysis is characteristically thorough and would seem unlikely to be overturned.

Graeme Kirk / 23rd Jan 2017


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